Engineering Humans with Contracts

Abstract

Contract law shapes the transactional environments where people formulate legally binding commitments and relationships. In general, contract law is understood to be a form of liberating infrastructure that greatly enhances individual and group autonomy and sociality. Yet conventional understanding may have it backwards. Contracting practices have changed dramatically over the past half-century to accommodate changes in economic, social, and technological systems, and may be more liberating for some (e.g., firms) than others (e.g., consumers). As implemented in electronic architecture, at least, contracts may be quite oppressive. This Article shows how the current legal and technical architecture of electronic contracting nudges human beings to behave like simple stimulus-response machines and conditions us to become increasingly predictable and programmable. It develops a series of hypotheses to be tested, articulates a new Taylorist theory to explain the design of human-computer interfaces used to form electronic contracts, and defends a series of reform proposals.